TELLYTRACK v MARSHALLS WORLD OF SPORT (PTY) LTD & OTHERS (971/2018) 2019 ZASCA 153.
On 25 November 2019, the Supreme Court of Appeal delivered an interesting decision dealing with copyright infringement in cinematographic films. This case was an appeal from the Kwa-Zulu Natal Division of the High Court, Durban. What makes the decision particularly noteworthy is the detail the court went into in analysing what constitutes a cinematographic film and determining the elements that make up a cinematographic film.
Brief summary on the facts and decision of Court a quo:
Tellytrack, a partnership consisting of three different companies which are racetrack operators, was seeking an interdict against the respondents, restraining them from showing horse racing events at their business premises which are shown on the Tellytrack Television channel 239. The channel is broadcast by a national broadcast entity, the South African Digital Satellite Television (DSTV).
Tellytrack operates a television control room in Rivonia that receives raw television feeds from domestic horse races via a transmission service provider and receives raw international horse race feeds via satellite. The raw race feeds consist of visual images of events leading up to the race, images of the live race being run accompanied by audio commentary as well as pre- and post-race celebrity and guest interviews. Tellytrack enhances the raw race feeds with computer software. Once edited, the final product, referred to as a dirty feed, is then sent by fibre optic cable to Mulitchoice to be shown on channel 239. The enhancements are added within one second of being received and final product dispatched immediately for broadcasting.
In respect of domestic races, there is a production team stationed at the race tracks operating from “Outside Broadcasting vans” (OB Vans). The images captured during a race are converted to a format which enables them to be received via fibre-optic cable at the OB Van. The transmission leaves the OB van and enhancements are added and the final product is sent to Tellytrack’s control room and to DSTV simultaneously.
Tellytrack stated that the Respondents were infringing various works by making national and international horse racing events available for viewing by the public at its premises, without paying the subscription for the services. Tellytrack claimed copyright infringement in literary works, sound recordings, in cinematographic films as well as computer programs. Tellytrack felt that the Respondents were infringing their copyright on a daily basis, and as such, were entitled to claim for damages calculated on the basis of a reasonable royalty which would have been paid by a licensee in respect of the use of the works.
The court took note of the definition of ‘fixation’ – that a work has to be fixed or reduced to some or other material form before it can be eligible for copyright. The Court further relied on the definition of cinematographic films as stated in Golden China TV Game Centre & Others v Nintendo Co. Ltd. The Court came to the conclusion that the Plaintiff’s case must fail because:
There was no copying of a work which was ‘fixated’ or stored (as required by the Copyright Act) when the Defendants showed the Tellytrack channel on their screens. As such, the Defendants were actually showing a broadcast and not a cinematographic film given that the recording of the events happened concurrently with the transmission of the live event this was from the evidence adduced by the plaintiffs that what is broadcast as Tellytracks TV channel is recorded simultaneously or concurrently as the channel is viewed. There was therefore no copying of a work which had been fixated. In respect of the other works, the Court stated that the literary work, sound recording and computer-generated works do not have existence other than as part of the cinematographic film. Given that the Plaintiff claimed for copyright infringement in a cinematographic film and not a broadcast, the application failed.
Court of Appeal
The Court of Appeal reviewed the decision and came to a different conclusion. The main question in the Court of Appeal was whether Tellytrack was entitled to claim copyright in relation to the cinematographic films. In answering this question, the Court stated:
“There can be no doubt that what the public is allowed to see at the respondents’ business locations are a sequence of images seen as a moving picture constituting in the main horse racing events. Those images and others, including those of studio interviews and the overlay of all the items imposed by way of the computer program, have indisputably been reduced to material form by way of the recordings on the aforesaid occasions. First, in relation to domestic races, two recordings were made at the OB van, second at the Tellytrack control room. In respect of international races, the recording is made of the complete product, including enhancements, at the Tellytrack control room. What is seen on channel 239 is what has already been recorded and stored at the OB van and the Tellytrack control room. At the time that a race event is seen on channel 239 is has already been recorded and stored, as described above.”
It was on this basis that the Court found that what was seen on DSTV was a cinematographic film and not a broadcast. As such, Tellytrack was entitled to the interdict.